By Allen Smith, J. D.
During the present surge in COVID-19 cases due to the variant called JN.1, employers must decide whether to let sick employees work from home, even as more employers are asking staff to return to work in the office. Whether to give employees with COVID-19 such flexibility can be a close call. Here are factors employers should consider.
While managers should encourage employees to stay home if they feel ill, “assuming that an employee with COVID-19 symptoms feels well enough to work and be productive, then remote work can be allowed if technologically feasible,” said Jim Paul, SHRM-SCP, an attorney with Ogletree Deakins in St. Louis and Tampa, Fla. However, if an employee needs to rest and recuperate, an employer should offer time off instead, he said.
This means employers must balance competing concerns: the need to send sick workers home and enforce rules on isolation, and employers’ wish for employees to resume working in the office. Also, if an employer permits remote work while an employee is sick, it must ensure compliance with the Fair Labor Standards Act (FLSA)—particularly with nonexempt employees—and the Family and Medical Leave Act (FMLA).
More Stringent Attendance Policies
Employers’ in-office attendance policies have become more stringent as COVID-19’s potential harm has diminished. Today, antiviral therapy with Paxlovid for those who are eligible based on age or immune status can prevent hospitalizations and deaths, said Dr. Jeff Levin-Scherz, population health leader with WTW in Boston.
“The risk that employees will die of COVID-19 has declined dramatically since earlier in the pandemic, and this change supports employers easing many of the pandemic-era responses,” he said. “The vast majority of employees have at least some immunity, whether due to past infection, vaccination or both.”
Employers have been asking employees to return to the office, but many are still opting for fewer than five days in person, said Robin Shea, an attorney with Constangy, Brooks, Smith & Prophete in Winston-Salem, N.C. “My experience has been that even the hard-liners are allowing employees to work remotely two to three days a week. That is much more remote work than we were accustomed to pre-COVID,” she said.
Hybrid work arrangements vary widely based on location, employers’ ability to attract and retain workers, industry and culture, Paul said, while in some jobs, remote work never was an option.
Isolation and Return to Work
When sick employees are sent home, they shouldn’t be rushed back to work before they feel better, as that puts the rest of the workforce at risk of illness or infection, said Eric Emanuelson Jr., an attorney with Epstein Becker Green in Washington, D.C.
Although the Centers for Disease Control and Prevention (CDC) recommends that those who test positive for COVID-19 should isolate for at least five days, the CDC’s guidance is not binding on private employers, though it is the best practice, Emanuelson said.
In addition, sick employees should wear a mask when around others for 10 days following the positive test. “Following CDC guidance in these instances provides credibility to the employers’ decisions, makes communications of these decisions easier for managers and potentially reduces the spread of COVID-19 in the workplace,” he said.
Shea favored a streamlined approach. “Now that COVID has been demoted to a less catastrophic illness, I would recommend that managers treat all potentially contagious illnesses the same, including COVID-19,” she said.
Shea recommended:
- Sending a sick employee home, either to work or to recover.
- Recommending that the employee see a health care provider.
- Telling an employee they are free to return to the worksite once the health care provider finds the employee is no longer contagious.
FLSA Concerns
Sick employees may begin feeling better before their isolation period has ended and might then start working from home. To remain in compliance with the FLSA, nonexempt employees should record all time worked while they are telecommuting, Emanuelson said.
“If the employer does not have timekeeping systems or protocols to track an employee’s work time outside the office, it may opt to prohibit nonexempt employees from working remotely to avoid a costly wage and hour violation,” he said.
If employees are prohibited from working from home but the employer discovers they are doing so anyway, they must be paid but may be warned or disciplined to help prevent off-the-clock claims.
Health Factors
“Perhaps the best argument against letting employees with COVID work from home is that the priority should be to let the employee rest and recover,” Shea said.
If the employee is using leave under the FMLA to cover the period of illness, it’s much easier to track if the employee takes the leave in a block with no brief interruptions for work, she said. An employee can’t be charged for FMLA time if they are working.
If the employee is really feeling bad, the illness could also impair their ability to work effectively, Shea added.
“So many of us have had enough of COVID. That does not mean COVID has had enough of us,” said Jonathan Segal, an attorney with Duane Morris in Philadelphia and New York City.
While he acknowledged that a handful of employees might fake being sick to take advantage of an employer that permits remote work for workers with COVID-19, he asked why an employer would punish everyone because of a few.
Segal also cautioned, “If you don’t allow employees to work from home, employees are less likely to acknowledge the symptoms and isolate.”
